At The Bar - 2019-2020 Council Farewell to Executive Director Making the Future Possible www.nzbar.org.nz
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At The Bar December 2019 2019-2020 Council Farewell to Executive Director Making the Future Possible www.nzbar.org.nz
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MP102019CC
YOUR ASSOCIATION
p4 pg 4 From the President – Kate Davenport QC
pg 7 Interview with Outgoing Executive Director,
Melissa Perkin
pg 9 Your NZBA Council – Profiles of the NZBA Council
Members
pg 12 New Members
pg 38 Conference 2019 – report and pictures
pg 43 Auckland Christmas Drinks
p13 LEGAL MATTERS
pg 11 Making the Future Possible – Lawyers for
Climate Action NZ
pg 13 Zhang v R – an update on meth sentencing
guidelines
pg 22 Eleventh Annual Sentencing Advocacy
Competition – a report
pg 24 Minimum Wage Act and legal workers – an
outline from the Aotearoa Legal Workers Union
p33
PRACTICE AND LIFESTYLE
pg 17 Band Four Chocolate Cake – a recipe from @
StrictlyObiter inspired by the Zhang case
pg 18 Private Investigations – what a private investigator
brings to your case
pg 19 A Simple Guide to Saving Time, Money and the
Planet – using unified communications in your
practice
p38 pg 28 Aligning Sustainability Values with Investment
Goals – is there a win/win?
pg 26 Can You Afford to Be Off Work? – the benefits of
income protection
pg 31 A Win For the Rule of Law – member benefit
partner, LexisNexis, is honoured for its work
pg 33 Switched on Corner – petrol cars give way to zero
emission electric cars in this issue
p39
The views expressed in the articles in publication may not necessarily be the views of the New Zealand Bar Association.
EDITORIAL COMMITTEE Jacqui Thompson NEW ZEALAND BAR
David O’Neill - Chair (Contributions & Advertising) ASSOCIATION
Tel: +64 7 839 1745 Tel: +64 9 303 4515 Tel: +64 9 303 4515
Email: david.oneill@nzbarrister.com Email: jacqui.thompson@nzbar.org.nz Email: nzbar@nzbar.org.nz
Melissa Perkin Web: www.nzbar.org.nz
Tel: +64 9 303 4515 DESIGN AND LAYOUT BY
PO Box 631
Email: melissa.perkin@nzbar.org.nz Kirsten McLeod
Tel: +64 9 834 2224 Auckland 1140
President’s Report
by Kate Davenport QC*
Kia ora koutou
I hope, like me, that you are all looking forward to your summer break.
I think we all deserve it! Looking back over the four months since our
last issue, I realise how much has been packed into that time. As usual
this column is only a summary of some of those events, and a lot more
happens behind-the-scenes, but I hope it gives you a flavour of the hard
work that the NZBA does.
Resignation of Executive Director
Our Executive Director, Melissa Perkin, has resigned in order to take
up an exciting new role that will not only utilise her existing talents, but
will provide her with a new career challenge. While we are happy for her
sake, we are sad to see her go after almost 9 years.
Melissa has helped the Association grow and expand its activities over the time she has been with
us. It is hard to pick out any one area, but we can certainly highlight her work in expanding our
member benefits portfolio to the point where we now offer approximately 50 different benefits, all of
which can be accessed via an app – which she has driven.
There have been several challenges over her tenure, particularly with difficult submissions on
legislation. Melissa’s legal background has been of immense benefit to us in this work. It has also
helped us with our media statements and interactions with the public.
On behalf of the Council and the Secretariat, as well as the wider membership, I wish Melissa all the
best and thank her for the work she has done for us.
Queen's Counsel
I would like to warmly congratulate the recently announced Silk appointees. They are: Stephen Hunter,
Julie-Anne Kincade, Simon Foote, and Professor Janet McLean (all from Auckland); Nicolette Levy
and Karen Feint from Wellington; Len Andersen from Dunedin; and Jonathan Temm from Rotorua.
This is a significant achievement for you all and I wish you the very best as you more forward in your
careers.
Council news
Following our election earlier this year, we have
several new Council members. I was able to thank
outgoing members of the 2018-2019 Council at our
Gala Dinner at the Annual Conference and I do
so again here. They are: Jenny Cooper QC, Maria
Dew QC, Angela Corry, Lisa Hansen, Lara Steel,
Rob Stevens, Dean Tobin and Sam Wimsett.
Under our rules, we can co-opt an additional three
members to the Council, which we have done,
and Josh McBride and Michael Webb will be re-
joining us along with new junior representative,
Sam Jeffs. We are also very pleased to note that
Quentin Duff will be joining the Council, initially
as an observer, and will also help with matters
relating to tikanga and te Ao Māori. Profiles of the
Council members appear on p9.
www.nzbar.org.nz 4
Before this year’s Annual Conference, we held a Council meeting. We took the opportunity of having not only Council members, but also the Secretariat, in the same place at the same time and undertook a SWOT (Strengths, Weaknesses, Opportunities, Threats) Analysis. This allowed us to turn a lens on where the Association is now, where we would like it to be and how we are going to get there. We will use this information to make plans for the future. It has already identified some opportunities for us and some improvements that we can make. Thank you to Maria Dew QC for facilitating this process. Joint ABA/NZBA conference The inaugural Australian Bar Association/New Zealand Bar Association joint conference was held in August in Queenstown. I can confidently say that it was highly successful and that we all very much enjoyed it. The sessions were interesting and thought provoking, and I was pleased to see that the discussions around the various topics continued after the sessions had ended. There were many people on both sides of the Tasman who made this event successful, but in respect of our own contributors, I want to thank Simon Foote for his work on the programme. Simon was also part of the winning debate team from the Gala Diner, along with Kathryn Dalziel. A more detailed Conference report appears on p38. NZBA Committees Due to limited newsletter space, I can only note a few of the highlights from the last four months. I will be writing to committee members to thank them for their help with the work of the Association, but I would like to publicly acknowledge that work now. Access to Justice: I have been working closely with the Access to Justice team, particularly on legal aid reform issues. We have had significant consultation with the Ministry of Justice, including the Secretary for Justice, which has proved extremely useful. We have been able to feed in our suggestions for change and improvement in the provider experience. This is an ongoing process and we will be reporting to the membership as we progress. Criminal: It has been a very busy few months for our Criminal Committee and unfortunately it looks as if some of that work will spill over into the summer break, as we will be submitting on the Sexual Violence Bill. The closing date for submissions is 31 January 2020. We have a working group that is examining the proposed legislation to determine which provisions we support, and which we feel require change. If you have any comments that you would like to share with that group, please send them to SVW@nzbar.org.nz. The Committee has also provided feedback for the Ministry of Justice on the appropriateness of current experience levels for criminal legal aid suppliers. Diversity: Our Diversity and Inclusion Committee has also been very busy. We have gained partial funding from the Law Foundation to further our research on the gender of counsel appearing in the Senior Courts. This funding will allow us to extend the research for a further two years and provide meaningful data that will allow us to propose improvements. We were very pleased to have been a sponsor of the inaugural Pacific Lawyers Association Conference this year. The new chair of our Diversity Committee, Setareh Stienstra, spoke at the conference. She reported that the event was very worthwhile, and she will be feeding her key learnings back to the Committee. Law Reform: The Association has made a submission on Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters) Amendment Bill. It concludes that the changes proposed by the Bill to expedite efficiency in the processes and procedures of the Māori Land Court are directed at, and on an objective, view will facilitate, enhanced access to justice in material respects by those engaging with the Māori Land Court. We would like to thank Tim Castle for drafting the submission and Karen Feint for her comments on this issue. This submission will be made available on our website shortly. We have been working with the Rules Committee on civil justice reforms and have provided feedback on several proposals. In particular, we have done a significant amount of work on proposals for the introduction of a shorter causes hearing procedure for the High Court. Our thanks go to Clive Elliott QC and Felix Geiringer and the rest of the team who have worked on this. www.nzbar.org.nz 5
Chris Gudsell QC addresses the Faculty at the Workshop Training: The NZBA held its Mastering Appellate Advocacy Workshop on 19 October 2019 at the Wellington High Court. We were very fortunate to work with Crown Law in putting together this workshop. The faculty included two Supreme Court judges, four Court of Appeal judges, two High Court judges and two Deputy Solicitors-General. The coaches included senior counsel from the bar and Crown Law. The workshop was hard work for all, but the feedback was overwhelmingly positive and reinforces how useful these courses are. I would like to thank all those who participated and especially Chris Gudsell QC, James Rapley QC, Charlotte Brook and the rest of the Mastering Advocacy Course Committee for organising and running this workshop. Other activities I want to quickly mention three events out of the many that I attended. The first was the annual Ethel Benjamin address, which each year is given by a senior woman member of the profession or the judiciary. This year it was given by Solicitor-General Una Jagose QC and her speech was both inspiring and thought provoking. I congratulate her on it. If you want to listen to the address, it is available on You Tube. https://www.youtube.com/watch?v=LWclIznyKwg Members will recall that Ethel was admitted a year after women were permitted to become lawyers in 1897. It is fair to say that the male members of the profession were not kind to her. Only one man would walk with her in procession for the 1902 opening of the Dunedin law courts and the Law Society refused to allow her to attend its dinners and tried to impose a dress code on her. Today, things are very different for women, but if there is one thing that we have learned over the last few years, it is that we cannot rest on our laurels. We urgently need to address cultural issues that are preventing women from progressing to senior ranks in law and are inhibiting entry, participation and progression by ethnically diverse people, including Māori, Pasifika and Asian. This was a theme that I took up when I addressed the court at the special sitting to mark the 150th anniversary of the New Zealand Law Society, in Auckland when I spoke on behalf of the NZBA. The Law Society is central to the structure and regulation of the legal profession and it was important to mark this anniversary, and to consider how the legal profession must change to meet the needs of an increasingly diverse society. We commend the Law Society for undertaking its recently announced review. We also held a networking event in early November in Auckland on Corporate Conduct, Regulation and the Courts – Where are we at and where to from here? Speakers included Antonia Watson, Acting CEO of ANZ Bank; David Bricklebank, ANZ General Counsel; Scott McKinnon from the Reserve Bank; Jane Anderson QC; and Michael Webb (who helped to organise the event). I briefly addressed the audience on the advantages of briefing a barrister and then the panel each considered the legal and social context of corporate responsibility. Thank you to Michael for all his efforts and to the ANZ Bank for providing the venue. And finally In a personal career achievement, I was honoured to be appointed a Master of the Bench (or Bencher) of the Middle Temple (one of the four Inns of Court in the United Kingdom). Masters are elected by their peers. This was the first time in the history of the call ceremony that all of the new Masters were women. *Kate Davenport QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email president@nzbar.org.nz. www.nzbar.org.nz 6
Interview with Outgoing Executive Director,
Melissa Perkin
Our Executive Director over the last (almost) nine years, Melissa Perkin, is moving on to a new role
at the New Zealand Dispute Resolution Centre. While some of us will continue to see her through
connections with that company, we will still miss her. In this interview, she reflects on her time with the
Association and how it has changed since she first joined.
What was the organisation like earning opportunities such as sponsorship
when you first joined? and commissions from external suppliers.
I started with the Bar This has been a big focus of my time with the
Association in March 2011, Association. I have very much enjoyed working
following on from the first with these suppliers. It wouldn’t be possible
full time Executive Director to hold our annual conference without the
Monique Pearson. During significant financial contributions from our
Monique’s term of over four sponsors. Commission income has provided a
years, there were numerous much-needed injection of funds to enable the
achievements including Association to continue to grow in its services to
the creation of a business model, new Council members and other activities.
structure, improved members’ services,
the introduction of training and mentoring We also had to look at our member benefit
programmes, social events and enhancements offerings. We already had a very successful
to the website, newsletter and annual professional indemnity insurance scheme in place,
conference. She did this very effectively. which has continued to grow. We have expanded
our member benefit offerings from the insurance
My mandate was to continue to grow the and a handful of other benefits, to the point where
membership, introduce new initiatives and we now can offer benefits with over 50 companies.
revenue streams and to also drive forward the
NZBA’s other strategic ideals. The NZBA wanted We launched a member benefit app 3 years ago
to widen its profile so that it was recognised for members to download to their phones so that
as a representative body for all of those at the they could easily access these benefits. With
bar. There was a perception that it was mainly the improvements in technology, we made the
commercial and mainly Auckland-based. decision earlier this year to upgrade the app,
so we can offer a new range of benefits called
Over the last few years, we have grown the Benefits +. A considerable amount of work has
membership numbers by 57%. Some of this gone into this new app, and it will be launched to
growth was the result of changes to the members very soon.
membership structure in 2011 which saw the
Public Defence Service join as a corporate We are also participating much more in the
associate member, and there has also been international arena. Our President is a member
steady growth in the number of barristers joining. of the Council of the Australasian Institute of
Judicial Administration, and our Presidents
We have also concentrated more on the regions speak at each World Bar Conference, the
outside of Auckland. The Association’s membership next one which is being held in Hong Kong in
reaches from Northland through to Southland. One March next year. This year, our President Kate
of the key changes is that the increased use of Davenport QC spoke at an IBA Conference in
technology has allowed us to communicate more Budapest. In addition, we have strengthened
effectively with members around the country, as our ties with the Australian Bar Association,
well as offer a greater range of services, such as particularly through participating in advocacy
online training, across the country. training and have recently held a successful joint
conference with them in Queenstown.
In what other areas has the Association grown?
An important part of my role was to ensure How has the Secretariat changed?
the financial well-being of the Association so When I started, the only other member of staff
that it could achieve its objectives. We quickly was our Administrator Lisa Mills, who I am very
realised that we had to look at a range of income pleased to say is still here! We later introduced
www.nzbar.org.nz 7
another part-time position for a Training Director was a significant undertaking both in time and
and Jacqui Thompson joined us. Jacqui’s role later financial resources, but it was critical as we had
became full-time. This allowed me to concentrate outgrown our old system.
more on the higher-level work, including dealing
with submissions, liaising with other professional We also moved some of our training on to a
organisations, and our stakeholders. webinar platform which has made it a lot more
accessible and more cost effective, and it is able
With the increase in the Association’s activities, to be accessed on demand.
we realised that we needed some more support
for administrative activities such as accounts A relatively recent change is the use of online
and membership. We were lucky enough to find meetings – this has been revolutionary in its
Dianne Tietjens who works for the Association impact and provides greater convenience as
part-time. well as time and cost savings.
You mentioned submissions and liaising with Another example of improvements from
other bodies. What did you bring to this role? technology is the recent adoption of board
I hold a practising certificate as a barrister. management software, BoardPro, which is being
In addition to being at the Bar before coming used for Council and Committee meetings. The
into this role, I have previously worked for the time savings are considerable, and we no longer
Ministry of Justice as well as having spent have to print large bundles of documents at
time at another professional body which considerable cost and environmental impact.
in part involved regulatory work. My legal
background has been invaluable when reviewing Has training changed since you started with the
submissions that we have prepared in response Association?
to proposed legislation, assessing reports and Yes, definitely. Apart from the development of
proposals from organisations involved in law the webinars, we have developed our Mastering
reform and legal practice. Advocacy Programme, which delivers practical
litigation skills training. This programme is
How is the Association positioning itself the future? modelled on best practice equivalents used in
In 2017, the Council resolved to adopt a strategic Australia, Hong Kong, Malaysia and the United
plan and I was one of those involved in the Kingdom. We have received extremely positive
drafting process. This is an important document responses, not just from the participants, but from
that provides a blueprint for our activities and members of the judiciary who have participated.
what we want to focus on.
Our Annual Conference sits outside the general
With the rate of change, preparing for the future training programme but of course does have a
is a significant challenge and it is difficult – if training element. This has grown over the years
not impossible – to plan too far ahead. The in size and remains a flagship event on our
technology revolution means that we are on calendar. We also introduced a series of optional
shifting sands and have to be agile enough to social activities to be undertaken at the end of
adapt to the latest changes. the formal programme, that have proved to be
highly popular. And, of course, we have hosted
The Secretariat recognises this and there is a two international conferences with the World Bar
strong commitment from all staff to continuously Conference in 2014 and our first joint conference
improve the delivery of services to members. This with the Australian Bar Association this year.
is after all, a core function of the Association.
Are there any other developments that you are
How has technology affected future planning? particularly pleased with?
One of the key responses to this was to look Well, there are certainly too many to include
at the technology we were using. Shortly after here, but I would like to mention our work on
I arrived at the Association, we looked at our diversity, access to justice and our improved
financial management system. It was clear that mentoring programme. The Council, committee
we need something much more sophisticated members and the Secretariat have worked
that was able to give us more information on our incredibly hard on these developments and
financial activities. We changed to Xero, which I have been delighted with the response and
has vastly improved the situation. commitment. We have achieved some significant
breakthroughs in these areas.
In 2016/2017 we changed our client relationship
management system (CRM) and website. This
continued on page 25...
www.nzbar.org.nz 8
Your New Council 2019 -2020
KATE DAVENPORT QC - QUENTIN DUFF - Observer
President (Auckland) (Auckland)
Kate is entering her second A criminal litigation specialist,
year as President, following a Quentin is Head of chambers at
very busy first year. In addition Matai Chambers in Auckland.
to representing the Association He graduated LLM from Victoria
at a range of ceremonial events University of Wellington in 1997
(including the former Chief and joined Kensington Swan
Justice’s Valedictory sitting and the following year. He practised
the Swearing-in of the new Chief Justice), Kate as a barrister on his own for 16 years before
travelled to Budapest where she was member founding Matai Chambers. He has appeared as
of a panel speaking on issues around bullying trial counsel and appellate counsel in the various
and discrimination. Kate has also been working courts of New Zealand. He has acted in trans-
hard with the Access to Justice committee on Tasman disputes, Securities Act/Ordinance
initiatives to improve legal aid and encourage matters and prepared materials for cases in
pro bono services. In a personal career highlight, New Zealand, Australia, Hong Kong, Singapore,
in a call ceremony in the UK on 26 November, Malaysia and China. These cases include
Kate was elected as a Master of the Bench (or fraud, misleading information in a prospectus,
Bencher) of the Middle Temple. intellectual property, employment, smuggling to
murder. He has also acted for MNC providing
PAUL RADICH QC - opinions on various internal matters. Quentin is
President-Elect (Wellington) initially joining the Council as an observer.
After a short break, Paul has
rejoined the Council as President JONATHAN EATON QC
Elect. He practises out of Clifton (Canterbury)
Chambers in Wellington. Paul Jonathan has been a member of
joined the bar in 2012, having the Council and Vice-President
been a litigation partner with South Island since 2015. He
Izard Weston, Bell Gully and was also a member of Council
Minter Ellison Rudd Watts. His practice includes from 2005 to 2010. Jonathan
general commercial litigation as well as public is a member of the NZBA’s
law, judicial review and constitutional law Management Committee as well
proceedings, including working on Treaty and as serving as the Chair of the Criminal and Law
Māori and matters. Paul took silk in 2014. Paul will Reform Committees. He has the responsibility
work closely with Kate Davenport to ensure a for the implementation of objective 4 of the
seamless transition in October 2020. NZBA’s Strategic Plan, namely, to ensure
the NZBA is recognised as the voice of the
PHILLIP CORNEGÉ independent bar. Jonathan has a strong interest
(Waikato/Bay of Plenty) in training and the development of pathways for
Phillip Cornegé has been a a career at the independent bar and is a member
member of the NZBA Training of the NZBA’s Mastering Advocacy Faculty.
Committee for some time, as
well as serving on its Technology SIMON FOOTE (Auckland)
Committee. He conducts Simon is a barrister at Bankside
training for the Association on Chambers with a commercial
running paperless hearings. litigation and arbitration
Phillip recently joined the Mastering Advocacy practice. He went to the Bar in
Faculty in Wellington to provide specialist support 2002, after working at major
on using E-Casebooks in court. He helped with firms in Wellington, Auckland
the redrafting of the Senior Courts revised 2019 and London, and as a Crown
Electronic Document Protocol. Phillip is an Prosecutor in Palmerston North.
experienced trial and appellate lawyer, and has He was Deputy Chair of the 2014 World Bar
appeared several times in the Court of Appeal.
www.nzbar.org.nz 9
Conference at Queenstown and the NZ Bar JOSH McBRIDE
Conference at Napier in 2015, then Chair of (Auckland)
the 2016 Conference at Taupo, 2017 Conference Josh has been co-opted
at Blenheim, and the 2018 30th Anniversary to Council. He joined the
Conference at Rotorua. He chaired this year’s independent bar in 2010 and
joint NZBA/ABA conference in Queenstown. was a founding member of
Simon also serves on the Association’s Diversity Richmond Chambers in 2014.
and Inclusion Committee and the Access to His practice is largely focussed
Justice Committee, chairs the Membership on commercial litigation,
Committee and participates as an advocacy although he also has an administrative law
trainer in the NZBA Mastering Advocacy Faculty. practice. Josh served on Council in 2018 – 2019
and was a member of the Mastering Advocacy
FELIX GEIRINGER Cross-Examination Faculty. Josh is the Chair
(Wellington) of the Practice and Bar Care Committee and
Wellington barrister, Felix serves on our Technology Committee. He
Geiringer, practises in a broad assisted with law reform issues relating to
range of legal fields. He has the 2019 Senior Courts Electronic Documents
acted in a number of recent Protocol revision and the Arms Act legislation
high-profile matters including that followed the Christchurch Mosque killings.
representing Sir Tim Shadbolt
in a successful defence of RICHARD McGUIRE -
a defamation claim; representing Toni Waho Associate Member Rep
in his successful trust law claim against Te (Canterbury)
Kōhanga Reo National Trust; and representing Richard is a Senior Duty Lawyer
Nicky Hager in his judicial review and public Supervisor with the Public
law damages claims against the New Zealand Defence Service, a position that
Police. Felix’s recent cases also include he has held since 2011. Prior
matters involving commercial and company to that, he was a director in a
law, arbitration, administrative law, land law, firm in Christchurch where his
professional discipline, inquiries, tort law, te Tiriti practice included criminal defence law, family
o Waitangi, sports law, and criminal appeals. law and general practice. He held appointments
He frequently appears in the appellate courts, as lawyer for child and as a youth advocate.
including multiple appearances in the New He was admitted to the bar in 1991. This
Zealand Supreme Court and the Privy Council. is Richard’s first term as a member of the
Felix has joined the NZBA Access to Justice, Law NZBA Council. He is a member of both the
Reform, and Annual Conference Committees. Criminal Committee and the Access to Justice
Committee. He believes that access to justice
SAM JEFFS - Junior Rep* remains an important issue for the Association,
(Auckland) the wider profession and the community.
Sam is a civil and commercial
barrister with broad experience. TIHO MIJATOV -
He had advised and acted for Junior Rep* (Wellington)
parties in a range of disputes Tiho is a barrister at Stout
arising from contracts, joint Street Chambers, Wellington.
ventures, shareholdings, His particular expertise and
construction projects, trusts interest is in providing public law
and estates, and employment relationships. Sam advice and advocacy. Before
has appeared in a number of courts, including joining chambers, Tiho was a
successfully in the Supreme Court, and various judge’s clerk at the Court of
specialist tribunals. He also regularly assists arbitral Appeal, where he gained wide experience in
tribunals determining international commercial civil and criminal law. Tiho has been a junior
disputes. Sam’s career has always been at the bar, barrister representative on Council since 2016.
having been employed by Sir David Williams QC, He has worked on several initiatives, including
Philip Skelton QC and Kelly Quinn at Bankside as junior counsel (written submissions) for the
Chambers, He is himself now a member of Bankside. New Zealand Bar Association and New Zealand
This is Sam’s first term on the NZBA Council. Sam Law Society as interveners in Fahey v R [2017]
was co-opted to Council and is on the Law Reform, NZCA 596 (Court of Appeal). He contributes
Membership and Promotion of the Bar Committees.
www.nzbar.org.nz 10to the NZBA's junior barrister membership and He regularly appears in the Invercargill, Gore
mentoring programmes. He is on the NZBA’s and Queenstown District Courts representing
Law Reform, Membership and Practice and Bar defendants on a wide variety of criminal
Care Committees. charges. Jono has represented appellants in
both the High Court and Court of Appeal. He
DAVID O’NEILL - Treasurer also has experience appearing before the New
(Waikato/Bay of Plenty) Zealand Parole Board. He is on the Criminal and
David was formerly a partner Membership Committees.
at O’Neill Allen & Parker, where
he ran the litigation section SETAREH STIENSTRA
of the firm until October 1995, (Auckland)
when he left to join the bar. Setareh has hit the ground
His practice includes civil/ running in her first term on the
commercial litigation, intellectual NZBA Council. She has taken
property and insolvency law. He is also an over chairing the Diversity and
arbitrator and has recently, with barrister Inclusion Committee, as well as
Melanie O’Neill, launched an online dispute joining the Annual Conference
resolution service called “Setting the Bar” which and Law Reform Committees.
focuses on mediating and arbitrating disputes, She recently attended the Pacific Lawyers
mostly below $100,000. David has served on Association conference on behalf of the NZBA.
the NZBA Council for several years as Vice- Setareh is based at Southern Cross Chambers
President (Waikato/Bay of Plenty), Secretary, with a practice in public law, property and
Treasurer and Editor in Chief of the Association’s general civil litigation associated with public law
Newsletter, At the Bar. He is on the NZBA Bar and property. She has been at the independent
Care Panel and is the Member Benefits Rep on bar for 6 years and prior to that held Senior
the Membership Committee. Associate roles at Simpson Grierson and
Kensington Swan. She commenced practice in
SIMATIVA PERESE (Auckland) 1999. Being of Kurdish and Armenian descent,
Simativa was admitted in diversity at the independent bar and in the legal
1990 and his career has profession generally is a matter that Setareh
been for the most part at the cares deeply about.
independent bar, practising
in civil litigation. He has also ANNE TOOHEY (Canterbury)
acted on an inquiry called by Anne is a barrister at
the then Prime Minister Helen Canterbury Chambers in
Clark; prosecuted on behalf of Christchurch and has a general
the Attorney General of Samoa; and appeared at practice in civil, employment
all levels of courts in New Zealand, Samoa, and and criminal litigation. Prior to
the Cook Islands. Simativa was the inaugural joining the independent bar, she
president of the Pacific Lawyers Association worked from admission in 1996
between 2002 and 2004. He was the Cabinet as a civil and criminal litigator in
appointed chair of the National Pacific Radio Wellington and Christchurch. She was a Crown
Trust, which set up and operated the Niu FM prosecutor and then Crown counsel for 13 years.
radio network across New Zealand for Pacific Anne has been an advocacy trainer for the NZ
People between 2002 and 2007. Simativa sits on Police and for PILON (Pacific Island Law Officer
the NZBA Diversity and Inclusion and Access to Network) for over 10 years, and has written
Justice Committees. many training materials, as well as co-writing
a text-book in relation to advocacy. Anne is a
JONO ROSS member of our Annual Conference Committee,
(Southland Otago) Criminal Committee, Membership Committee
Jono has joined the Bar Council and Training and CPD Sub-Committee.
as the Southland Otago Rep.
Jono commenced work as
a barrister sole in June 2017
following eight years in practice
developing a speciality in
criminal defence advocacy.
www.nzbar.org.nz 11ESTHER WATT (Wellington) MICHAEL WEBB (Auckland)
Esther was motivated to join Michael has been co-opted
the independent bar by her and is in his second term
wish to focus on advocacy and on the NZBA Council. He
the ability to promote access commenced practice at the
to justice by acting on a range independent bar in 1995. He
of matters and for a range of works principally in the areas of
clients, including in a pro bono commercial, financial markets
capacity. Esther is keen to and government law. His work
become involved in the initiatives outlined in includes advice, negotiation, and dispute
the NZBA strategic plan. She is also keen to resolution as well as law and policy reform.
foster the collegiality of the independent bar Michael is based predominantly in Auckland and
and to promote it as a fulfilling career option Wellington, as well as in the Pacific. Michael has
to other litigators, particularly those at an governance experience on the boards of public
intermediate level. Now in her second term on and private sector entities, including, until 2016,
the NZBA Council, Esther is on the Law Reform the Financial Markets Authority. Michael is on
Committee and is Co-Chair of the Annual the Commercial Bar Sub-Committee and the
Conference committee. She also appeared with Membership Committee.
James Rapley QC on behalf of the Association
as intervenor in the recent methamphetamine * A Junior Barrister is one who has been in practice for
guideline case, Zhang v R. less than seven (7) years since admission.
New Members
Will Anglin DUNEDIN Yoon Lee AUCKLAND
Taryn Bayley TAURANGA Timothy (Tim) Lindsay AUCKLAND
Isabelle Boyd AUCKLAND Donald (Don) Mackinnon AUCKLAND
Anna St Clair Brosnahan WHANGANUI Jessica Matheson AUCKLAND
Rachel Burt WELLINGTON David Mayall HAMILTON
Karen Chalmers CHRISTCHURCH Meryl Mikkelsen AUCKLAND
Roanna Chan WELLINGTON Robin O'Hair QUEENSLAND
Tracy Chubb AUCKLAND Thomas (Tom) Pasley AUCKLAND
Kerry Clark ADELAIDE Carter Pearce AUCKLAND
Amanda Courtney KAITAIA Rebecca Rose AUCKLAND
Jordan Curtis AUCKLAND Davey Salmon AUCKLAND
Hannah Cuthill NELSON Karyn South CHRISTCHURCH
Chris Dellabarca WELLINGTON Sija Spaak WELLINGTON
Tracy Flintoff CHRISTCHURCH Emily Stenhouse-White AUCKLAND
John Hannan AUCKLAND Ruth Thomas NELSON
Caroline Hannan WELLINGTON Shaye Thomas HAMILTON
Nicola Keating WELLINGTON Carolina Tiumalu AUCKLAND
Panama Le'Au'Anae AUCKLAND Rachael Woods AUCKLAND
You Sun Lee AUCKLAND Ting-Chung (Danny) Wu AUCKLAND
www.nzbar.org.nz 12Making the Future Possible
by Jacqui Thompson*
Pour ce qui est de l’avenir, il ne s’agit pas de le prévoir, mais de le rendre possible.“
– Antoine de Saint Exupéry, Citadelle, 19481
Cooper is hoping that the 'conservative' nature
of LCANZI’s membership will help it to be
recognised as a serious organisation. In a
recent Radio NZ interview, Cooper said: "We're
definitely part of the establishment, we have a
vested interest in the status quo, so when we
speak on climate change it's hard to say it's just
because we are naive or puppets of a left-wing
conspiracy."3
Climate Change Minister, James Shaw, also
highlighted the nature of the membership at the
organisation’s official launch event in Wellington
on 25 November 2019. The Minister noted that
Image by Gerd Altman from Pixabay the group had a broad array from the legal
In 2018 the Intergovernmental Panel on Climate profession “…who wouldn't normally be accused
Change (IPCC), the United Nations body of being kind of crazy hippies but are generally
for assessing the science related to climate thought of as a fairly conservative bunch, who
change, published a report that should have are really pushing the envelope on climate law.”4
scared everybody into immediate action.2
LCANZI’s purposes are heavily based on
Unfortunately, very few people read it.
advocacy for legislation and policies aimed
After listening to a presentation that discussed the at ensuring compliance with New Zealand’s
report’s findings at a conference earlier in 2019, obligations under the Paris Agreement and
Jenny Cooper QC and some of her colleagues achieving net zero carbon emissions. It will
realised that they had to do something. Cooper also help community groups fighting for climate
began by reading the report, which she describes change to find free or low cost legal advice by
as a very sobering read. Having read it, she said connecting them with volunteer lawyers.
there was no way she could not act.
Cooper feels that up until now, climate change
Cooper looked around for organisations with has not been on most lawyers’ radar. She says
which she and her colleagues could become that this is a pity because lawyers in general
involved. The problem was that while there were are an influential and capable group who can
many organisations working on climate change, ensure the law is fit for purpose to deal with
none specifically focused on the sorts of issues these issues. The organisation’s first goal was
that lawyers could grapple with. therefore making lawyers better informed and
more engaged. But obviously, a secondary
This gap in the market led to the formation of aim is to raise awareness and engagement
the Lawyers for Climate Action NZ Inc (LCANZI). throughout the wider community as a whole.
The organisation’s board consists of three
QCs and extremely well known members of Lawyers, says Cooper, have a role to play as
the legal profession. There is a good range of being authoritative, independent voices who
skills and knowledge across the committee, cannot be dismissed as teenagers or fringe
from environmental and public law through groups. For this reason, the organisation makes
to commercial law. They all share a real a conscious decision to put science first. “We
commitment to effecting change. are not scientists, but we are capable of reading
scientific evidence and communicating it to
1
Quoted on IPCC Special Report Website https://www.ipcc.ch/sr15/(accessed 27 November 2019). Translation: As for the future, it is not a question of
foreseeing it, but of making it possible,
2
https://www.ipcc.ch/sr15/download/ (accessed 27 November 2019).
3
Dreaver, C “Lawyers band together to dispel climate change scepticism” RNZ 26 November 2019 https://www.rnz.co.nz/news/political/404160/lawyers-band-
together-to-dispel-climate-change-scepticism (accessed 27 November 2019)
4
Ibid
www.nzbar.org.nz 13non-scientists as part of our job. We are not be subject to greater scrutiny; and
commenting on climate change for political • any new legislation would have to comply
reasons, but because we have looked at the with the right to a sustainable environment.
evidence and this is what it says.”
The organisation sent an open letter to the
Traditionally the law has not been very good Minster for Climate Change, the Minister of
at recognising collective rights and interests Justice and the Attorney-General which was
around the environment, says Cooper. But she signed by 60 Queen’s Counsel in support of its
notes that the law is also an incredible tool proposals to amend NZBORA.5
for implementing society’s decisions around
resource and risk allocation and how we operate One of the purposes of LCANZI is facilitating
together as a society. free or reduced-costed legal assistance to
community groups working to fight climate
The organisation has moved quickly into action. change. The concept is that a panel will be
It made a submission on the Zero Carbon Bill established of members who are willing to
earlier in 2019. The Select Committee adopted provide free or reduced cost legal services on
some of the LCANZI’s recommended changes. In a voluntary basis. Cooper notes that there are
particular, the original bill constrained the scope of already lawyers who provide enormous amounts
judicial review where decision-makers didn’t take of pro bono help in this area. “But we know this
the emissions targets into account in their original is an area where lots of lawyers want to help
decision-making. The changes mean that courts and be involved, and we thought this was an
can decide that in appropriate cases, the 2050 opportunity to take some of the pressure off
emissions target is a mandatory consideration for what is currently a small pool of people who
decision makers, and in some circumstances, a are doing this work, and give an opportunity to
decision could be invalid if there has been a failure those who want to help,” says Cooper.
to consider the emissions target.
LCANZI is not looking to be a litigant but is
A key area of concern for LCANZI is the providing the link between (for example) an NGO
Resource Management Act (RMA) amendments with a problem and a lawyer who could potentially
and it wants to play a key role in this reform. help. Its resources are limited, and to date this
The organisation has written to Ministers service is operating in an ad hoc way. Over time,
David Parker and James Shaw, seeking urgent Cooper would like to introduce a little more
amendments to repeal 70A and 104E of the RMA structure to this end of the organisation’s work.
and section 59(5)(b) of the Exclusive Economic
Zone and Continental Shelf (Environmental Cooper is very pleased with what LCANZI has
Effects) Act 2012. It believes that these sections achieved in a short time. Membership has been
obstruct local authorities and the Environmental growing steadily and is currently at around 250
Protection Agency from addressing the effects and rapidly increasing, with the potential for it
of either air discharge provisions or applicants’ to grow to around 300 by the end of the year.
proposals on climate change. Membership is open to anyone holding a law
degree. A practising certificate is not required.
Another project underway is a proposal to Associate membership is also available for non-
amend the New Zealand Bill of Rights Act 1990 lawyers (such as students or those working in
(NZBORA) to recognise the right to a sustainable law firms, or people in other disciplines who
environment. The organisation believes that the want to help).
right to a climate system capable of sustaining
human life is fundamental to a free and ordered Reflecting on the past few months, Cooper says
society. Expressly recognising this right would it has been exciting and there is no shortage of
promote Government action consistent with things to do; “I think it’s all positive. We will just
a sustainable environment and facilitate New keep doing as much as we can for as long as we
Zealand’s transition to a low emissions economy. can, and hopefully have a positive impact. Just
According to LCANZI, it would mean that: because you can’t do everything perfectly right
away, that is no reason not to make a start and
• existing legislation would be interpreted in line give things a go. We are figuring it out as we go
with the right to a sustainable environment; along but so far so good.”
• decisions by Government agencies that affect * Jacqui Thompson is our newsletter sub-editor. To join
the right to a sustainable environment would LCANZI, see https://www.lawyersforclimateaction.nz/
5
https://static1.squarespace.com/static/5cf3039126905000011c02b0/t/5ddcc1222e47f65be357837f/1574748453274/2019.11.2
5+QC+letter+FINAL.pdf (accessed 27 November 2019)
www.nzbar.org.nz 14Zhang – Case Note
by Jacqui Thompson*
The highly anticipated decision of Zhang v R 2. The Fatu bands focused solely on quantity
[2019] NZCA 507 was handed down on 21 and it was unprincipled and unjust for it to
October 2019. As reported in our last issue of be the sole determinant. This caused
At the Bar, James Rapley QC and Esther Watt rigidity, preventing proper assessments of
appeared for the New Zealand Law Society, criminality, removing judges’ discretion
New Zealand Bar Association and Auckland and preventing the courts from having
District Law Society as interveners. Six any regard or proper regard to other
sentence appeals were selected for hearing factors that were relevant to culpability,
together by a Full Court of five judges. such as role and addiction.
3. Minimum periods of imprisonment were
The case reviewed the guideline decision of frequently imposed in a routine,
the Court of Appeal in R v Fatu [2006] 2 NZLR mechanistic way, and without reasons
72, which created a series of sentencing bands being given. If reasons were given,
based on the quantity of methamphetamine reliance was typically placed on the need
involved in the offending, and whether the for deterrence. Judges regarded an end
offending related to supply, importation or sentence of nine years’ imprisonment or
manufacture. over as automatically attracting a
minimum period of imprisonment.
There were, however, concerns that Fatu
resulted in disproportionately severe sentences In terms of deterrence, the scientific evidence
and some of its underlying assumptions were presented to the Court suggested that severity
now incorrect. It was argued that: of sentencing had at best a modest deterrent
effect. However, the Court said that it would
1. Sentencing for methamphetamine (and
be wrong to wholly detach deterrence from
other drug offending) was based on a
denunciation, accountability and community
flawed premise that lengthy prison
protection when responding to a crime as
sentences are an effective deterrent,
harmful as dealing in methamphetamine.1
when scientific evidence showed that
Further, failing to impose appropriate sentences
this was not the case. This over-emphasis
of imprisonment would encourage dealing in
on deterrence was contrary to the
methamphetamine.
Sentencing Act principles and the New
Zealand Bill of Rights. Ignoring personal
factors perpetuated further inequality,
particularly in relation to Māori. 1
At [90]
www.nzbar.org.nz 15It was also noted that the legislative plan in s 8 judges may find it helpful to have regard to the
of the Sentencing Act 2004 means that the Council’s descriptions of roles and relevant
courts are not permitted to apply a more lenient indicia to be taken into account. It modified
sentencing scale than that set by Parliament. these to reflect New Zealand circumstances,
This precluded a radical departure from existing and observed that any discount for associated
sentencing principles, and from Fatu itself, mitigating personal considerations is a matter
although it did not mean that was not possible to for the second sentencing stage.5
make modifications.
Role
The Court considered what weight should be Lesser Significant Leading
given to the role played by the offender when 1. Performs a limited 1. Operational or 1. Directing or organising
function under direction; management function buying and selling on a
assessing culpability. The Court said that in 2. engaged by pressure, in own operation or commercial scale;
achieving justice in individual cases, there had coercion, intimidation; within a chain; 2. substantial links to, and
3. motivated solely or 2. involves and/or directs influence on, others in a
to be flexibility and discretion in setting the primarily by own others in the operation chain;
sentence, notwithstanding guideline judgments. addiction; whether by pressure, 3. close links to original
5. little or no actual or influence, intimidation source;
expected financial gain; or reward; 4. expectation of
The Court decided that quantity is an important 6. paid in drugs to feed 3. motivated solely or substantial financial
own addiction or cash primarily by financial or gain;
consideration in fixing culpability but that it is significantly other advantage, 5. uses business as cover;
not the only consideration. It is a reasonable disproportionate to whether or not and/or
quantity of drugs or operating alone; 6. abuses a position of
indicator of harm to the community and risks involved; 4. actual or expected trust or responsibility.
commerciality. It also said that the role played by 7. no influence on those commercial profit;
above in a chain; and/or
the defendant “…has a fundamental impact on 8. little, if any, awareness 5. some awareness and
culpability, and one that is more significant than or understanding of the understanding of scale
can be accommodated by simply moving within scale of operation;
and/or
of operation.
bands.”2 9. if own operation, solely
or primarily for own
joint use on
It was concluded that we should retain the Fatu non-commercial basis.
quantity bands but that they would be modified
significantly, particularly to allow for the role of Moving to the stage two analysis, the Court
the offender in fixing culpability and thus the said that personal mitigating circumstances
stage one sentence starting point:3 relating to the offender are applicable to all
instances of Class A drug offending, as in any
“… a more limited measure of engagement other offending. It identified some mitigating
in criminal dealing deserves a less severe circumstances that were particularly germane to
sentence than a significant or leading role. methamphetamine offending: addiction; mental
Role may result in an offender moving not health; duress or undue influence; and social,
only within a band — as currently happens or cultural and economic deprivation. These were
is supposed to happen under Fatu — but also relevant in three ways:6
between bands.”
1. Each can impair the rational choice
The new Zhang bands are:4 made to offend, and thereby diminish
moral culpability;
Former: Fatu New: Zhang
2. Diminished opportunity to make a rational
Band one: Community to choice also diminishes the deterrent
2 - 4.5 years
< 5 grams 4 years aspect of sentencing, both general and
Band two:
3 - 11 years 2 - 9 years
specific; and
< 250 grams 3. Some of these impairments alter the
Band three: effect of a term of imprisonment on the
8 - 15 years 6 - 12 years
< 500 grams individual offender and add to its severity.
Band four: This third consideration is one of
10 years to life 8 - 16 years
< 2 kilograms proportionality.
Band five:
10 years to life 10 years to life
> 2 kilograms In respect of social, cultural and economic
deprivation, the court said that where it has a
While the Court of Appeal did not adopt the demonstrative nexus with the offending, it may
double axis approach of the United Kingdom
At [110] At [126]
Sentencing Council, it said that sentencing
2 5
3
At [118] 6
At [138]
4
At [125]
www.nzbar.org.nz 16be presented in mitigation regardless of the
specific ethnicity of the offender.7 However, it
specifically considered some of the statistics
relating to Māori drug use and noted that Māori
are more than four times more likely to be
convicted of illicit drug dealing. It said that:8
“… ingrained, systemic poverty resulting
from loss of land, language, culture,
rangatiratanga, mana and dignity are matters
that may be regarded in a proper case to Band Four Chocolate Cake
have impaired choice and diminished moral @StrictlyObiter *
culpability. Where these constraints are
Inspired by Zhang v R [2019] NZCA 507 and
shown to contribute causatively to offending
Orchard v R [2019] NZCA 529.
(whether associated with addiction or not),
they will require consideration in sentencing.” As a starting point it serves 8-10.
Ingredients
Turning its attention to minimum periods of
The ingredients available are any of the following. Before
imprisonment, the Court of Appeal emphasised
you start be sure to assess not only the presence of these
that minimum periods of imprisonment must ingredients but also to evaluate their nature and quality.
not be imposed as a matter of routine or in a
mechanistic way, but result from a reasoned 175 grams of butter (softened depending on personal
circumstances)
analysis.9 As a general rule, lengthy minimum 1 and three quarter cups of sugar in cases of particular
periods of imprisonment are properly to aggravation
be reserved for cases involving significant 1 tsp vanilla extract
commercial dealing. Secondly, any practice that Up to 3 eggs
2 cups of flour, where the flour is of at least 60% purity
an end sentence of nine years imprisonment
No more than half a cup of cocoa, unless more is required
automatically triggers a minimum period of 2 tsp baking powder
imprisonment had to cease, as it was contrary to 1 cup of milk
section 86 of the Sentencing Act and a wrongful
exercise of discretion. Method
Preheat the oven to up to 180 degrees Celsius, but this
Counsel were encouraged in appropriate cases to should not be seen as an upper limit and in appropriate
cases this could go higher.
make use of s 25 of the Sentencing Act, which
empowers a judge to adjourn sentencing to Place the butter, sugar, vanilla in a large clean mixing
enable an offender to undertake a rehabilitation bowl. Cream them together but ensure you continue to
distinguish between them.
programme and for the offender’s response
to the programme to be taken into account Add the eggs one at a time, being careful to avoid
double-counting, then mix.
when sentencing subsequently takes place. An
appropriate case would be where independent Sift in the flour and cocoa to the extent they apply.
evidence suggests the offending was caused by This will be determined primarily by reference to their
weight. Add the baking powder taking care to avoid
the factor(s) which the proposed programme or excessive uplift.
course of action is designed to target.10
Pour in the milk and stir gently. Then, step back and
compare the mixture to other cakes you have baked in
Finally, in terms of the applicability of the the past.
decision, the Court adopted its usual approach
The mixture should still have a runny consistency but
that the judgment only applies to sentences that consistency is not an absolute end: the task remains an
have already been imposed only if:11 evaluative exercise.
Pour into a 30 centimetre tin. Some overlap at the
(a) an appeal against the sentence has been margins is to be expected.
filed before the date the judgment is
Place in oven and bake for up to half an hour, though
delivered (21 October 2019); and consider whether it should be released from the
(b) the application of the judgment would ten-minute mark onwards.
result in a more favourable outcome to the
Remember it is the end result that matters and not any
appellant. individual step or ingredient.
7
At [162] At [180]
10
* Used with permission. For more of what Strictly refers to as
8
At [159] At [191]; see also R v Vadati CA
11
“legal nonsense” please go to https://strictlyobiter.com/
9
At [169] 256/05, 19 December 2005 at [8].
www.nzbar.org.nz 17You can also read
